Bahadur v The State [1996] FJHC 62; Haa0057j.96s (25 October 1996)

Fiji Islands - Bahadur v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Suva

Appellate Jurisdiction

CRIMINAL APPEAL NO. 0057 OF 1996

BETWEEN:

1. HEM BAHADUR
s/o Sher Bahadur
2. SHAMSHER ALI
s/o Sher Ali
Appellants

AND:

THE STATE
Respondent

Mr. A. Singh for Appellants
Ms. R. Olutimayin for Respondent

JUDGMENT

This is an appeal against a sentence of five (5) years imprisonment and five (5) strokes of corporal punishment imposed on the appellants by the Magistrate Court, Suva on the 4th of July 1996 after they pleaded 'guilty' to an offence of Robbery with Violence.

The brief facts of the case may be summarised as follows: the appellants and two others planned and successfully executed a bank robbery at the Walu Bay branch of the A.N.Z. Bank in which cane knives and a kitchen knife were used to threaten bank staff before the group made with cash in excess of $1/4 million of which $114,508 were subsequently recovered.

The learned trial magistrate in sentencing the appellants said inter alia:

"I have considered mitigation carefully of both Accused.

They took part in a well-planned and calculated scheme. They were armed with lethal weapons too.

A very large amount of money is involved though substantial amount was recovered.

It is no doubt very serious offence. An immediate custodial sentence is warranted such offence have been prevalent in Fiji recently.

I therefore sentence both accused to five (5) years imprisonment."

The appellants now appeal against the sentences imposed by the trial magistrate on the ground that it is harsh and excessive.

I am grateful to learned counsel for the appellants who provided the Court with a fifteen (15) page written submission in which he has canvassed at length every conceivable matter that could be raised in the appellants favour including their 'guilty' pleas; their previous good records; the effect of the sentences on their immediate families and the appellants prospects of rehabilitation.

Having carefully considered the submission I am satisfied that the appellants well-merited the sentences imposed by the learned trial magistrate. Indeed if I may say so at one stage I was minded to ask counsel to show cause why the sentences should not be enhanced.

The learned author of Thomas on the Principles of Sentencing (p.128) says:

"... robbery is considered by the Court to be the most serious offence in the criminal calendar ... (in which) a policy in favour of deterrent sentences is most firmly and consistently maintained ... (and where) sentences of less than three years ... are uncommon, and much longer sentences are frequently found, even in the case of young men or men of previous good character."

The learned author also divided (at p.129) robbery sentences into 'five broad categories of fact situation' in which the most serious was 'the large-scale bank raid or wages strike', where 'the principal aggravating factor - a high degree of organisation - is most frequently found' and, in which, the 'normal range of sentences ... is between eight and twelve years imprisonment'.

Twenty (20) years ago when the offence of bank robbery was considered 'unusual' in this country the Fiji Court of Appeal nevertheless upheld sentences of eight (8) years and nine (9) years imprisonment for bank robbery imposed in R. v. Emori Toloi and Others (1976) 22 F.L.R. 143 and in so doing the Court said at p.149:

"The fact that bank robberies are unusual in Fiji does not, in our opinion, eliminate the propriety of imposing deterrent sentences in such cases."

In R. v. Turner and Others (1975) 61 Cr. App. R. 67 Lawton L.J. in upholding sentences of 10, 12, 14 and 18 years imprisonment for armed robberies involving banks said at p.91:

"We have come to the conclusion that the normal sentences for anyone taking part in a bank robbery or in the hold up of a security or a Post Office Van, should be 15 years if firearms were carried and no serious injury done. It follows therefore ... that the fact that a man has not much of a criminal record, if any at all, is not a powerful factor to be taken into consideration when the Court is dealing with cases of this gravity."

In the present case although both appellants are first offenders who pleaded guilty, nevertheless there were numerous 'aggravating features' in the case including:

(1) The degree of planning and premeditation involved in the preparation and commission of the offence;

(2) The fact that four (4) men were involved in carrying out the offence;

(3) The fact that knives and containers of highly inflammable benzine was used to threat staff in the robbery;

(4) The very large sum of money taken being in excess of $1/4 million in cash; and

(5) The fact that a co-accused (2nd appellant) was a security guard based at the Bank and could be said to be an 'insider'.

In light of the foregoing and the clear over-riding duty of the Courts to deter the commission of such offences, the prison sentences, if they erred at all, erred on the side of leniency. There is no merit in these appeals against the sentences of imprisonment which are accordingly dismissed.

The appeal against the trial magistrate's order of corporal punishment however, although not addressed by either counsels in their written submissions appears to my mind to be unduly harsh. True the Penal Code provides for the imposition of corporal punishment upon a conviction for Robbery With Violence, nevertheless, in my considered opinion, corporal punishment is most effective and best confined to offences which involve the use of actual personal violence.

Be that as it may the provisions of Section 34(3)(f)(ii) of the Penal Code (Cap.17) has effectively overtaken the appellant's sentences of corporal punishment thereby rendering them incapable of being lawfully carried out. They are accordingly formally quashed.

D.V. Fatiaki
JUDGE

At Suva,
25th October, 1996.

Haa0057j.96s